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Comparative Constitutional Law and its Applicability in International Law

Transformation is a part of our life. Receptive mechanisms of world-wide meeting, international governance, multiplex economic inter- relations, supported by the advanced communication techniques and other technologies have all played an immense role in promoting legal theory internationally and being adopted by several nations.

This had increased the comparative interests regarding legal institutions and legislations of different countries among the scholars, intellectuals, jurists, etc. This interest had been noticeable in comparative constitutional laws. Today, this discipline has gained world-wide recognition amongst the legal thinkers.

Not only law makers, but even judges do refer and include the international laws in solving the problem. Comparative constitutional laws are frequently utilized for self contemplation through resemblance, pointing out differences and contrasting. By considering the constitutional legal philosophy as well as other practical similar situations, intellectuals might be able to increase their understanding regarding the constitutional philosophies and values and include them (after molding them according to their situation) in their own constitution.

In this paper, I have tried to explain the comparative constitutional laws, how it is related with the international laws and its different working mechanisms with a special focus on Data Protection laws and policies among different countries such as the United States, Japan, Singapore, India and the European Union. The analysis briefly provides us with a perspective of an interconnected and interdependent world. We see how the EU's General Data Protection Regulations (GDPR) finds its origin from the OECD Guidelines and replaced them as the foundational guidelines for countries aiming to upgrade and establish their own data protection policies and laws.

Introduction
Comparative constitutional law is a separate field, which itself is included in the larger field of comparative laws all around the globe. This is the newly formed transformative field of the early 21st century which has expanded the interest of judges, scholars, lawyers, policy makers, sociologists etc. Now, even economists have also given their immense contribution in finding out collectively about the formation and operation of the constitution in different countries.

The mechanism of comparative study is the need of the Hour for the deep understanding of human attainment, culture and other institutions, because today human existence is not only limited within the national boundaries but has crossed all the boundaries and reached all the corners of the globe. Even, the establishment of the League of Nation (after 1st WW) and United Nations (after 2nd WW) signifies that all the nations are obliged to come together and find out a unanimous solution to the global issues that has shaken everyone. Learning of political and legal systems of different nations boosts up a healthier international understanding.

Comparative study is not any kind of body of rules rather it provides an approach or technique to know about legal systems and actions taken out by different nations towards a common problem by scrutinizing the vantage points, institutions etc.

The socio-economic, political, cultural, and environmental scenarios differ from country to country. These differences are reflected in their national guidelines often recorded/written in a document called the Constitution. The constitution of a country reflects its domestic realities and its future aspirations. It also provides us with a preview of how a country aims to engage with the international community, its laws and institutions.

The laws and the mechanisms of a country are not just influenced by the local and national scenarios but the international events too, affect them. This observation is evident through the comparative analysis of data protection law of the US, the EU, Japan, Singapore and India. It conveys how countries are trying to meet the international standards regarding exchange of goods, services and personal data in order to reinforce and ensure safe and secure development of their countries.

Meaning Of Comparative Constitutional Laws

Comparative Constitutional law is definitely an analytical high spirited field which surrounds progressively wider arrangements of techniques and perspectives. Comparison is done between different legal systems to identify the best applicable method to resolve the latest issue so far. This had a wider range of interdisciplinary interests and had been institutionalized with novel world- wide associations facilitating gatherings in order to interchange several ideas and forming collaborative projects.

In simple words, Comparative Constitutional Laws is the analysis of variations and affinity among the legal jurisprudences of different countries. It covers up the study of different legal structures all over the world, in order to take out the best solution for common global problems. The scope of comparative constitutional laws have been rapidly increased in the modern world of internationalism. It is a pedagogical learning of different constitutions in relation to their creation and functions and how we can combine their constitutive elements into a societal structure to eliminate the threatening problems.

(Comparative Constitutional Law: Introduction, 2011)Its history can be traced back to the time of Aristotle, who categorically analyzed the constitutions of Greek city states. Even traditional thinkers in Asia like in China and India, provide their ideologies regarding important principles of state polity. Even the polish, French and American thinkers had viewed the samples of written constitutions and indulged in the substantial scrutinizing of such models.

Subsequently, previous Constitutions of Latin America, New Granada (1830, 1832), Venezuela (1830), Peru (1823, 1828), and Argentine (1826) were highly influenced by Spanish Constitution. Prior studies focused on governance and judicial reviews. Studies showed that the true face of the political system includes the political reality of power. More power is in the hands of those who are elected/ appointed, selection being based on gender, caste, political connections etc.

According to contemporary view, Montesquieu was the father of Comparative Constitutional Law. He says that all the political and civil laws either adopted or framed should be in favour of people for whom they are made or adopted and should be in consistent with principles of governmental institutions . It should provide basic liberty to all its civilians. Whenever, the thinkers did comparative analysis of the legal system of different countries regarding a particular problem, then, it should be in their entirety.

Comparative method has been adopted by India. The best example is Indian Constitution which is totally created by comparing different countries' constitutions. After analyzing different constitutions, that provision which fits in our country's situation was adopted by our constitution makers. For eg. Fundamental Rights (from USA), Fundamental Duties (from USSR), DPSP (from Ireland), liberty, equality and fraternity (from French Constitution) etc. Comparative method forms an intrinsic part of our Constitution.

Relationship Between Comparative Laws And International Laws

(menon)After the 2nd WW was over, nearly 100 countries got freedom. All wanted to have the best governing system, hence, they include the basic principles and values which were globally accepted and reinforced by international rules. They did it through comparative analysis. The grundnorm of every country's legal system is its constitution. In simple words, the constitution forms the base of the legal system in every country.

Further on, constitutional law all over the country has recognized the basic human rights which are necessary for the survival of every human being. All provisions in International conventions and treaties focused on protection of human rights. For eg. UN Charters, International Bill of Rights, etc. The third beckon of democracy (i.e. in the mid 1970s) brought on everyone's attention to the constitution as a means of democratization.

The drafting of the Constitution became the first priority of every culturally variant state aspiring that it could help them out to resolve differences. The spread of constitutionalization and judicialization (profane increase in functioning of court) all over the world have raised the demand of comparative analysis.

Comparative law is definitely helpful for international institutions and organizations for analysing the global issues and taking a step forward to solve them. For eg. Terrorism is a global problem. Hence, different countries have their specified domestic laws on the subject matter.International Organization can collect data regarding the legislations formulated by different

 nations in order to curb terrorism, could make a comparative analysis and at last, could recommend nations (already having anti-terror laws) that what else modifications they could include in order to strengthen their laws against terrorism and basic structure to nations (which don't have the anti terror laws). Even domestic courts take help from international law to understand certain legal circumstances and decide the cases.

We could see that the basic rights covered by international documents are mainly included in the domestic laws of the signatory countries. It binds the signatory parties to follow the prescribed modules while forming their domestic laws.

Mechanism Of Comparative Laws In Different Legal System

(Chattopadhyay) According to Montesquieu, principles of laws should be adopted supporting the people for whom they are made. There is no doubt that comparative constitutional law includes categorical study of constitutional law, jurisprudence and political institutions.

Even various constitutional courts all over the globe had based their decision on Comparative constitutional laws. Every nation made their domestic laws based on certain principles which have been internationally recognized. There are various examples where comparative constitutional analyses have played their roles. For eg, the issue raised regarding unconstitutionality of death penalty, South Africa had well analyzed legal history of the state of India, Hong Kong, Germany, Zamaica, Tanzania, etc.

Even when we rose up the issue of gender identification and sex orientation, courts in USA (in 2 major cases of Lawrence vs. Texas (in which court struck down a Texa Statue for criminalizing homosexual conduct) and Ropers vs. Simons) had formed the verdict had even referred to foreign judgments too. Hence, in this way, comparative constitutional analysis is necessary for adding or modifying constitutional provisions for better understanding of the subject and resolving it. Constitutional supremacy has evolved in America but today has been adopted by more than 100 countries today.

Most of the countries which have constituted their Constitutions after the ending if 2nd WW, have 5 common elements in them:
  • Inculcates provisions which provide for establishment of main governmental institutions, explaining relationships between them, provides privileges to them and mechanism for their removal.
  • Provisions mentioning separation of powers among governing institutions.
  • All the rights and freedoms granted to the citizens of the country and provisions regarding remedies to be given on their infringement.
  • Mechanism for amending or modifying the Constitution keeping certain basic features to be in mind (which cannot be amended).
  • Provision regarding set up of independent judiciary giving them the power of Judicial Review the governmental works and authorize them to make any Act unconstitutional if they are against the basic features of the constitution.

It had been seen that mainly constitutional theory and practical application in the 3 major countries i.e. Germany, Canada and South Africa had been major derivations of revelation to global jurists. Comparative Constitutional Laws provide the learning, implementation, expounding of legislations set up by a nation's constitution. Comparative method provides to fill in the gaps which have been there in our constitution in a better way.

More comparison provides us with the best idea in which we can resolve the problems in our country. Although it had been seen that different societies have distinct circumstances, but the needs and abilities of humans did not vary much. The main advantage of comparative analysis is that it specifies the similar or dissimilar situations with that of other countries and hence, to improve our legal system through the experiences of others.

If we talk about working of legal systems, it differs from nation to nation because of different cultures, customs, values, ideologies, etc. Let's take an example of Adultery (extramarital sexual intercourse with a married woman) laws in different countries. Starting from India, adultery is no more a criminal act hereafter the 2018 verdict laid down by SC bench headed by the then CJI Mr. Dipak Mishra.

The court scrapped the 150 years old law by stating that it is in violation of women rights and dignity and husband could not be controller of wife. Besides this, adultery is still a valid cause to take divorce. But the verdict was not whole heartedly because their tradition and customs consider adultery as an immoral act. Besides Hinduism, Islamic and Christianity also considered adultery as a sinful crime for which even execution of offenders was granted. Even not only in India but all around the ancient world, it is believed to be a wrongful act. Extreme painful punishments were given like Public Hanging, stoning, whipping, Genital Mutilation and other of tortures (till the death of offenders).

Even today, there are several countries which still preserve adultery as a punishable offence. In Philippines, adultery is a crime for women and fornication for men. Revised Penal Code punishes wife and her adulterous partner for 6 months imprisonment (once proved). Chinese marriage laws made adultery as a ground for divorce. Japan decriminalized adultery in 1947, South Korea in 2015. Taiwan made adultery legal finally on 29th May 2020.

Before this, a case was filed in 2002, where the statute declaring adultery as a crime was challenged but at that time it was upheld by court believing it as constitutionally valid. Mostly, major European countries had also decriminalized adultery like England, Italy, Luxembourg, France, Switzerland, Belgium, Portugal, Greece, etc. Turkey considered adultery laws as not valid because it had been violating equality between men and women. Countries following Islamic laws consider adultery as a sin like Saudi Arabia, Somalia and Pakistan even punishes the offender with death penalty.

The common ground among the countries that had decriminalized is that the laws were violating the equality between men and women. The global transferring of constitutional ideas had been there in legal academics also. Even Indian courts have relied on international precedents. Like in Naz Foundation case, SC had referred to three international decisions i.e. Lawrence vs. Texas (invalidate the criminalization of homosexual intercourse), Dudgeon vs. United Kingdom and National Coalition for Gay and Lesbian Equality vs. Minister of Justice.

Accordingly, comparative analysis plays an immense role in providing a path towards changing the whole jurisprudence. South African Constitution formulated in 1996 and courts formed have been identified as a result of apartheid movement, which brought new change in the governance of country and a way forward for the black's rights and identity in other countries too. Then, Britain, Canada, Israel and New Zealand have marked as a source of Parliamentary styled sovereignty. These countries have even made certain amendments to their constitution to include Bill of Rights and Judicial Review.

Comparative Analysis of Data Protection Laws and its Mechanisms in Different Countries
Fair Information Practices Principles (FIPP) are a set of principles that prescribes how data should be handled, stored, and managed to maintain fairness, privacy, and security in a rapidly growing global technological environment.

These principles were a result of a Commission appointed by the government of the United States which inquired into the way data is collected, used, and regulated. These principles are deemed to be the bedrock of modern data protection laws across the world. The FIPPS further inspired the Organisation for Economic Cooperation and Development (OECD) Privacy Guidelines which aimed at providing a framework for harmonizing national privacy legislations amongst OECD members.

The OECD Guidelines are deemed to be the first internationally agreed-upon statement of information privacy principles and have significantly influenced data protection framework around the globe such as the European Directive 95/46/EC on the processing of personal data and the free movement of such data (Data Protection Directive), 2004 Asia-Pacific Economic Cooperation Framework (APEC Framework) as well as data protection legislation of Australia, New Zealand, and Japan.

In the EU, the right to privacy is a fundamental right that seeks to protect an individual's dignity. The European Charter of Fundamental Rights (EU Charter) recognizes the right to privacy as well as the right to protection of personal data. Data Protection Directive was the first principal EU legal instrument on data protection and was influenced by the OECD guidelines.

The fast-changing data landscape led the EU to update its regulatory environment on data protection. The product of this process is the EU General Data Protection Regulation of 2016 (EU GDPR). The GDPR sets out seven key principles of lawfulness, fairness, and transparency; purpose limitation; data minimization; accuracy; storage limitation; integrity and confidentiality (security); and accountability. The EU GDPR is one of the most stringent data protection laws in the world and unlike the previous Data Protection Directive, GDPR being regulation is enforceable as law in all Member States.

Japan's Act on the Protection of Personal Information was amended to bring it closer in line with the EU's General Data Protection Regulation (GDPR).

The amendment reinforced various provisions of the Act such as:
  1. Expanding Individual Rights:
    by requiring the deleting or disclosure of personal information (PI) in case of violation of the data subject's rights or legitimate interests; in the event of a breach. It also includes short-term data as previously the data was held for six months or more.
     
  2. Breach Notification:
    Companies are required to notify the individual and the data privacy authority (Personal Information Protection Commission (PPC) in case there is an event that potentially causes the violation of individual rights and interests. The report to PPC shall state the situation followed by a more detailed report as to the causes and remedial measures implemented.
     
  3. Cross Border Application:
    The Amendment clarifies that the provisions, obligations and penalties will now apply to the entities outside of Japan as well, that supply of goods and services and handle PI from an individual in Japan.
     
  4. Encouraging Private PI Protection Organisations:
    The Amendment aims to expand the number of accredited organizations providing PI protection advice or privacy certificates to organizations and companies.
     
  5. Increased Penalties:
    Penalties for violation of the law have been increased up to ¥100M (around US$1M). individual violation of a PPC order would result in up to 1year imprisonment or a fine of up to ¥1M ($10k).

The United States does not have a single, comprehensive federal (national) law regulating the collection and use of personal data. Instead, there are hundreds of laws enacted on both the federal and state levels. For example, California, on 28th June 2018 passed a privacy law which is deemed to be one of the most stringent consumer protection privacy laws in the nation. It introduced onerous new requirements and limitations on any business that collects and sells personal information of California residents.

Though no provision in the US Constitution explicitly grants a right to privacy, the US courts, however, have collectively recognized the right by piecing various Amendments made to the Constitution. Various legislations define the activities and powers of the government such as the Privacy Act, 1974 which is based on FIPPS, the Electronic Communication Privacy Act, 1986, the Right to Financial Privacy Act, 1978, etc.

Singapore's Personal Data Protection Act (PDPA) was established to govern the collection, use, and disclosure of personal data by organisations. It recognizes the right of individuals to protect their personal data and the needs of organisations to collect, use, and disclose personal data for legitimate and reasonable purposes.

The PDPA ensures a baseline standard of protection for personal data across the country by complementing sector-specific legislative and regulatory frameworks. This means that organisations have to comply with the Act as well as the common law and other relevant laws that are applied to that specific industry when handling personal data. Like the GDPR, the PDPS exerts extraterritorial reach and is explicitly extended to those who may not even be recognized under the law of Singapore.

On November 2nd, 2020, the Singapore Parliament passed amendments to the Personal Data Protection Act 2012. It introduced new exceptions to the terms of consent such as in a contractual necessity, it allows organisations to disclose an individual's personal data without their express consent to other organisations. It also included research purposes, public interest, legitimate interests, and business improvement purposes as exceptions to the collection, use, and disclosure of personal data.

India's Personal Data Protection Bill, 2018 stems out from the fundamental right of right to privacy guaranteed by the Indian Constitution. It recognizes the growing digital economy which leads to the use of critical data as a means of communication between consumers and the government; consumers and organizations; or organizations and the government.

Hence, the Bill was established with the provision to foster a free and fair digital economy where the autonomy of individuals in relation to their personal data is protected and to create a relationship of trust between persons and entities processing their data. It also specifies the rights of individuals whose personal data are processed and lays down norms for cross-border transfer of personal data. The Bill also established an independent Data Protection Authority for overseeing processing activities.

If it becomes an Act, it shall extend to the whole of India. The states, citizens, Indian companies, or body incorporated under Indian law has to comply with this Act. It also applies to any business carried by a foreign company in India. The Bill entails that the purpose of data collection and process shall be clear, specific, and lawful.

The consent of the data principal (citizens) is necessary for any business to carry on with the processing of data. It provides the data principals with various rights such as the right to confirmation and access, correction, data portability, and the right to be forgotten. However, the Bill states that the data shall be kept as long as the purpose for which the data was collected has been served.

Exemptions to this law will include events concerning security of the State; prevention, investigation, and prosecution of contraventions of the law, journalistic and research purposes. It also exempts small entities that procure data manually.

Conclusion
It is evident that a best legal theory constitutes simple concepts and deeper explanations for empirical occurrences. This could best be possible through comparative constitutional laws. It is suspected that the vast majority of high-quality comparative public-law scholarship produced over the past decade has contributed significantly to the mapping and classification of the world of new constitutionalism, along with formation of appropriate notional structures for learning comparative constitutional laws more extensively. In short, the transmission of ideas all over the globe had made comparative constitutional laws to reach new heights.

Work done by intellectuals of this field is explanatory, theoretical, regulative and most important ideological. International deliberations among scholars assisted by advanced technological instruments, has introduced substantial understanding about various legal and constitutional mechanisms of different countries. This is all because of a prosperous frame of information, which made it easy to extract out comparative research and implement discern perception over the whole nation.

The comparative analysis of a few of the data protection laws and policies made it clear how the world is more intertwined than we thought. Despite political, socio-economic, or cultural differences, countries all around the world try to establish and upgrade their institutions and laws by assessing the same in others.

For instance, the Indian Constitution is known as a ‘borrowed document' as various provisions from other nations have been absorbed in the Indian constitution to suit its polity such as Fundamental Rights, judicial review, independent judiciary from the Constitution of United States; the concept of republic and ideals of freedom, equality, and fraternity from French constitution, etc. In the case of data protection, many countries have adopted guidelines and regulations of the EU's GDPR such as Japan's amendments to APPI regarding cross-border transfer was inspired by GDPR.

India's PDPB also borrows some of its provisions from GDPR such as terms of requiring consent, a right to be forgotten, breach notification requirements, etc. However, we also observed in the case of the United States that there need not be a provision in the Constitution to introduce a new law. Even though the United States does not have a standardized data protection law for the entire nation, privacy protection is deemed as “liberty protection” that is, protection of the personal space from the government, and through this various laws protecting the privacy of US citizens came into being.

References:
  • Chattopadhyay, Shrabana. SCOPE OF COMPARATIVE CONSTITUTIONAL LAW IN LEGAL STUDIES. Researchgate. [Online] [Cited: 11 21, 2020.] https://www.researchgate.net/publication/342235230_SCOPE_OF_COMPARATIVE_CONSTITUTIONAL_LAW_IN_LEGAL_STUDIES#pfa.
  • Comparative Constitutional Law: Introduction. Tom Ginsberg, Rosalind Dixon. 2011. Chicago : Edward Elgar Publishing Limited, 2011. 978 1 84844 539 0.
  • menon, Prof. N.R. Madhav. Relevance Of Comparative Constitutional Law. Llyod Law College. [Online] [Cited: 11 20, 2020.] https://www.lloydlawcollege.edu.in/blogrelevance/-of-comparative-constitutional-law.html.
  • Sheshadri Chatterjee. Issue of personal data and privacy policy: a comparative analysis for different countries. International Journal of Law. ISSN: 2455-2194. Volume 4; Issue 2. Published on: March 2018
  • Emma Woollacott. Changes to Japan's data privacy law echo's Europe GDPR. The Daily Swig [online]. Updated: 10th September 2020. Available from: <https://portswigger.net/daily-swig/changes-to-japans-data-privacy-law-echo-europes-gdpr#:~:text=Japan%20has%20made%20changes%20to,Data%20Protection%20Regulation%20(GDPR).&text=For%20example%2C%20Japan%20does%20not,failing%20to%20meet%20the%20standards.>
  • Scott A. Warren. Maika Kawaguchi. New Amendments passed to Japan's Data Privacy Law. The National Law Review. Volume X, Number 328. Published on: 23rd November 2020 [online]. Available from: <https://www.natlawreview.com/article/new-amendments-passed-to-japan-s-data-privacy-law>
  • Personal Data Protection Commission. PDPA Overview. Government of Singapore (pdpc.gov.sg). Available from: <https://www.pdpc.gov.sg/Overview-of-PDPA/The-Legislation/Personal-Data-Protection-Act>
  • The Personal Data Protection Bill, 2018. Ministry of Electronics and Information Technology. Government of India. Available from:
    <https://www.meity.gov.in/writereaddata/files/Personal_Data_Protection_Bill,2018.pdf>

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